FILED MAY 22, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In re Dependency of ) No. 40426-9-III ) ) S.S.B. † ) ) ) UNPUBLISHED OPINION
COONEY, J. — C.B. and J.G. are the biological parents of S.S.B. S.S.B.’s mother,
C.B., is a member of the Chippewa Cree Tribe of Rocky Boy’s Indian Reservation
(Chippewa Cree). S.S.B.’s father, J.G., has no verifiable American Indian heritage.
After three years of dependency proceedings, the Department of Children, Youth, and
Families (Department) filed a petition to terminate the parent-child relationship between
† To protect the privacy interests of S.S.B., we use her initials throughout this opinion. Gen. Order for Court of Appeals, In re Changes to Case Title (Wash. Ct. App. Aug. 22, 2018) (effective September 1, 2018), http://www.courts.wa.gov/appellate_trial_courts. No. 40426-9-III In re Dependency of S.S.B.
S.S.B. and both of her parents. The Department’s petition was granted following a bench
trial. 1
On appeal, J.G. argues the Department failed to provide adequate notice to
Chippewa Cree and did not make active efforts to provide him with remedial services and
rehabilitative programs. The Department and S.S.B. respond that Chippewa Cree was
given proper notice under the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-
1963, and the Washington Indian Child Welfare Act (WICWA), chapter 13.38 RCW, and
substantial evidence supports the trial court’s findings regarding the Department’s active
efforts to prevent the breakup of S.S.B.’s American Indian family. We agree with the
Department and S.S.B. and affirm.
BACKGROUND
S.S.B. was born in February 2011 to C.B. and J.G. J.G. was imprisoned in 2012
for second degree assault (domestic violence) and unlawful possession of a firearm. Ex.
20, 24 at 1. J.G. was released to unstable living arrangements in 2019. At various times
relevant to this appeal, J.G. resided with his wife,2 lived with his mother, rented his own
apartment, and was sometimes unhoused. J.G. returned to prison in June 2020 for
ingesting controlled substances in violation of the terms of his community custody.
1 The trial court entered an order of default against C.B. after she failed to appear in court on January 8, 2024. 2 His wife at the time was not C.B.
2 No. 40426-9-III In re Dependency of S.S.B.
The Department became involved with the family in September 2020 following a
report to Child Protective Services (CPS) that C.B. had left S.S.B., who at the time was
nine years old, alone at a gasoline station. Ex. 1 at 4. In late January 2021, C.B. again
left S.S.B. unattended, this time at a shelter. Ex. 1 at 3. C.B requested S.S.B. be placed
in foster care and told S.S.B. that she could no longer care for her. Ex. 1 at 3.
On January 27, 2021, S.S.B. was removed from C.B.’s care. Ex. 3. The
Department filed a dependency petition the following day, alleging that C.B. posed a
substantial risk of neglecting S.S.B. due to her “ongoing and unaddressed substance use
and mental health” issues. Ex. 1 at 3. C.B. informed the Department that she was an
enrolled member of Chippewa Cree and that S.S.B. was not eligible for enrollment.
Based on C.B.’s representation, the Department sent a “Native American Inquiry
Request” to Chippewa Cree via certified mail with return receipt requested. Ex. 3 at 3.
On February 24, 2021, the Department filed an amended dependency petition,
claiming that J.G. was incarcerated at the Airway Heights Corrections Center. The
petition stated that collateral sources showed J.G. had nine felony convictions, pending
criminal charges, and had been arrested for a probation violation on February 3, 2021.
Ex. 2 at 1-2. J.G. had married Denise Johnson prior to his arrest on February 3.
J.G. was released from the Airway Heights Corrections Center in March 2021,
only to return to jail in April. In April 2021, while J.G. was detained at the Spokane
County Jail, two social workers, one of who was a Family Assessment Response (FAR)
3 No. 40426-9-III In re Dependency of S.S.B.
social worker, met J.G. for a “face-to-face in person” meeting. Rep. of Proc. (RP) at 270.
The social workers scheduled J.G. for a neuropsychological evaluation with a uniquely
qualified physician and referrals were made for him to obtain a domestic violence
assessment and urinalysis testing. Shortly thereafter, J.G. was released from jail and
resided with his wife. J.G. subsequently “dropped out of communication” and failed to
appear for the neuropsychological evaluation, did not submit to urinalysis testing, and
failed to follow through on the referral for the domestic violence assessment. RP at 280.
Between late April and the end of May 2021, J.G. had minimal contact with the
Department through telephone calls and text messages. Thereafter, J.G.’s telephone did
not work, and he was no longer residing consistently with his wife. The social worker
tried to locate J.G. through phone calls; text messages; service letters; social media
platforms; searching government databases; checking jail rosters; monitoring court
websites; and contacting his wife, parents, and community corrections officer. A second
social worker made similar attempts.
The Department discovered J.G. was once again incarcerated in May 2022.
During this period, Ms. Johnson filed a petition for a domestic violence protection order
against J.G. Ex. 26. J.G. was eventually released from jail and spent the latter half of
2022 living in an apartment in Spokane, Washington, until his eviction at the end of the
year.
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In mid-January 2023, J.G. briefly moved to Kalispell, Montana, where he lived out
of his car. During this time––late 2022 to early 2023––the Department attempted to
locate J.G. through telephone calls; text messages; service letters; searching government
databases; requesting police reports; monitoring jail rosters; checking court websites;
contacting his wife, his father, his wife’s social worker, and his community corrections
officer; inquiring into an Adult Protective Services matter that involved his wife; using
the “parent locator;” searching local shelters; and attending one of his criminal court
dates. RP at 393.
In February 2023, J.G. was arrested in Montana on a warrant issued after he left
Washington without permission. In March or April 2023, J.G. resided in an apartment
above the Red Lion in Spokane, until he was arrested in July for first degree unlawful
possession of a firearm. Ex. 25. A social worker contacted J.G. in jail and scheduled a
substance abuse evaluation. J.G. submitted to the substance abuse evaluation while
incarcerated. The evaluation resulted in a recommendation that J.G. complete inpatient
treatment.
J.G. was released from jail on bond in late August, and discontinued having
contact with the Department. A social worker attempted to locate J.G. through, among
other means, the “parent locator;” searching government databases; communicating with
his wife, his father, and his aunt; searching local shelters; and attending one of his
criminal court dates. RP at 103-04, 129.
5 No. 40426-9-III In re Dependency of S.S.B.
J.G. was incarcerated again in December 2023. J.G. successfully completed a
parenting class while confined at the Geiger Correction Center. J.G. remained
incarcerated through the time of trial.
The social workers found it easy to contact J.G. when he was incarcerated. Upon
his release from jail, J.G. “was good about texting and was great to work with.” RP at
271. However, J.G. “pretty quickly, would fall off and [they] wouldn’t be able to find
him again.” RP at 271.
The Department filed a petition to terminate the parent-child relationship between
S.S.B. and her parents on December 30, 2022. The Department sent notice to several
tribes, including Chippewa Cree, by certified mail with return receipt requested. The
notice was in substantially the same form as the Washington Indian Child Welfare Act
Notice form WPF JU 03.0900 and listed a termination hearing of April 6, 2023. A
representative of Chippewa Cree signed the return receipt on March 13, 2023,
acknowledging the tribe had received the WICWA notice form.
In response to the notice, Chippewa Cree claimed S.S.B. was not eligible for
membership. Ex. 10 at 2. Chippewa Cree later modified its membership eligibility
requirements. On November 1, 2023, Chippewa Cree informed the Department that
S.S.B. was eligible for membership and that it would be intervening in the case. The
November 6 trial date was continued to January 29, 2024, to allow additional time for
Chippewa Cree to intervene. Ex. 31. Chippewa Cree then reversed course and notified
6 No. 40426-9-III In re Dependency of S.S.B.
the Department that the “tribe will not be intervening” “due to the late correspondence
and involvement we do not have adequate time to prepare any response.” Ex. 31.
The termination trial commenced on March 4, 2024. J.G. appeared with his
attorney. S.S.B. was represented by an attorney who advocated for termination of J.G.
and C.B.’s parental rights, and C.B. had earlier been found in default. At trial, Chippewa
Cree representative Jaynah Gopher acknowledged she was informed of the trial date
through an e-mail sent on February 7, 2024. Ms. Gopher testified Chippewa Cree agreed
with the conclusion in Richard England’s report that J.G.’s custody of S.S.B. would
likely result in emotional and physical damage, and that S.S.B. was in an appropriate
placement. Ms. Gopher testified she had sufficient opportunity to speak with her
supervisor and Chippewa Cree’s council to present the decision and recommendation.
The court issued its findings of fact and conclusions of law after a four-day trial.
The court found the Department offered J.G. a chemical dependency assessment with
follow up treatment, urinalysis testing, a mental health assessment and follow up
treatment, a neuropsychological evaluation and recommended treatment, an evidence-
based parenting program, and a domestic violence assessment and treatment. J.G.
initially did not believe he needed to engage in the dependency because he thought
someone else would “step up to the plate” and provide a home for S.S.B. The trial court
noted J.G.’s criminal history and his difficulty following through with the terms of his
community custody.
7 No. 40426-9-III In re Dependency of S.S.B.
The trial court found the Department’s active efforts were ineffective because J.G.
fell out of contact with social workers when he was not incarcerated and failed to attend
scheduled appointments. The trial court found that J.G. was not resistant to services, was
aware of his mental health and chemical dependency issues, and acknowledged the need
for treatment. Even in light of J.G. admitting that steps were taken and services provided
to get him where he needed to be, he lacked the follow-through necessary to remedy his
parental deficiencies.
The trial court found that J.G. had only one visit with S.S.B. during the three years
of the dependency. The court further found J.G.’s contact and relationship with S.S.B.
was nonexistent and concluded there was little likelihood J.G.’s situation would be
remedied in the near future. The court granted the Department’s petition and termination
of the parent-child relationship between S.S.B. and both parents.
J.G. timely appeals.
ANALYSIS
ADEQUACY OF NOTICE TO THE CHIPPEWA CREE TRIBE
J.G. argues he was denied his right to due process when the Department failed to
properly notify Chippewa Cree of the proceedings. We disagree.
Applicability of the ICWA is a question of law that this court reviews de novo. In
re Custody of C.C.M., 149 Wn. App. 184, 194, 202 P.3d 971 (2009). Factual findings of
the trial court are upheld if supported by substantial evidence from which a rational trier
8 No. 40426-9-III In re Dependency of S.S.B.
of fact could find the necessary facts by “clear, cogent, and convincing evidence.” In re
Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999). Unchallenged
findings of fact are treated as verities on appeal. In the Interest of Mahaney, 146 Wn.2d
878, 895, 51 P.3d 776 (2002).
The Department bears the burden of demonstrating that it substantially complied
with ICWA’s notice requirements. In re Welfare of M.S.S., 86 Wn. App. 127, 136, 936
P.2d 36 (1997); In re Dependency of E.S., 92 Wn. App. 762, 771, 964 P.2d 404 (1998).
We review the record for substantial evidence that notice requirements were met. E.S.,
92 Wn. App. at 772. Failure to provide proper notice under ICWA requires remand
unless the tribe participated in the proceedings or expressly responded that it has no
interest in the proceedings. Id. at 771.
Questions of statutory interpretation are questions of law reviewed de novo. State
v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010). “The purpose of statutory
interpretation is ‘to determine and give effect to the intent of the legislature.’” State v.
Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013) (quoting State v. Sweany, 174 Wn.2d
909, 914, 281 P.3d 305 (2012)). “When possible, we derive legislative intent solely from
the plain language enacted by the legislature, considering the text of the provision in
question, the context of the statute in which the provision is found, related provisions,
and the statutory scheme as a whole.” Id. If the plain language of a statute is subject to
9 No. 40426-9-III In re Dependency of S.S.B.
more than one reasonable interpretation, the statute is ambiguous, and we engage in
statutory construction. Id. at 192-93.
Washington adopted significant provisions of the ICWA into the WICWA. We
therefore read the two statutes as coextensive except when differences exist in the
statutory language. In re Adoption of T.A.W., 186 Wn.2d 828, 844, 383 P.3d 492 (2016).
Hence, “the acts [are] interpreted analogous and conterminous” yielding only to one
version if it provides more protection to a covered party. Id.
J.G. argues the Department failed to provide proper notice to Chippewa Cree. He
claims the Department was required to provide Chippewa Cree notice of every hearing by
registered mail and that e-mail notifications fail to satisfy the ICWA’s notice
requirement. We disagree.
The notice requirement under the ICWA provides:
Notice; time for commencement of proceedings; additional time for preparation
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking . . . termination of parental rights to, an Indian child shall notify the… Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention… No . . . termination of parental rights proceeding shall be held until at least ten days after receipt of notice by . . . the tribe. . . . Provided, That . . . the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.
10 No. 40426-9-III In re Dependency of S.S.B.
25 U.S.C. § 1912(a) (emphasis in original). 25 CFR § 23.111(c) clarifies that “[n]otice
must be sent by registered or certified mail with return receipt requested.” WICWA’s
notice provision reads:
In any involuntary child custody proceeding seeking . . . the termination of parental rights to, a child in which the petitioning party or the court knows, or has reason to know, that the child is or may be an Indian child as defined in this chapter, the petitioning party shall notify . . . the Indian child’s tribe or tribes, by certified mail, return receipt requested, and by use of a mandatory Indian child welfare act notice addressed to the tribal agent designated by the Indian child’s tribe or tribes for receipt of Indian child welfare act notice, as published by the bureau of Indian affairs in the federal register. . . . No . . . termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the . . . Indian . . . tribe. The . . . tribe shall, upon request, be granted up to twenty additional days to prepare for the proceeding.
RCW 13.38.070(1) (emphasis added).
Here, the Department’s notice to Chippewa Cree was in substantially the same
form as the Washington Indian Child Welfare Act Notice form. 3 The notice was mailed
to Chippewa Cree on March 7, 2023, by certified mail with return receipt requested. A
Chippewa Cree representative signed the return receipt, acknowledging that Chippewa
Cree acquired the notice on March 13, 2023. The notice sent by the Department to
Chippewa Cree fulfilled the requirements of the ICWA and the WICWA.
3 Form WPF JU 03.0900, Indian Child Welfare Act Notice, https://www.courts.wa.gov/forms/documents/JU03_090_ICWA%20Notice%202023%20 08.pdf
11 No. 40426-9-III In re Dependency of S.S.B.
J.G. next asserts the Department was required to provide notice of every hearing
by registered mail. We disagree.
The ICWA notice requirements are codified in 25 U.S.C. § 1912(a). Supporting
regulations pertaining to notice are addressed in 25 C.F.R. § 23.111(d). The enforcing
regulation does not require notice to be given for each hearing. The Bureau of Indian
Affairs published a comment on notice that clarifies:
Each proceeding may involve more than one court hearing, but only one notice meeting the registered (or certified) mail requirements of section 1912(a) is required for each proceeding (regardless of the number of court hearings within the proceeding).
Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38810 (June 14, 2016).
The Department notified Chippewa Cree of the original April 6, 2023, termination
trial by certified mail. Thereafter, the Department kept Chippewa Cree apprised of
hearing dates through e-mail communications. Ex. 31. The Department complied
substantially with the notice requirements of 25 U.S.C. § 1912(a) and RCW 13.38.070(1).
Moreover, any purported defect in notice was cured by Chippewa Cree’s participation in
the trial through Ms. Gopher. E.S., 92 Wn. App. at 771.
The Department satisfied the notice requirements under both the ICWA and the
WICWA.
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ACTIVE EFFORTS
J.G. argues the Department did not make active efforts to provide him remedial
services and rehabilitative programs designed to prevent the breakup of his American
Indian family. The Department responds that it made active efforts, but was unsuccessful
because J.G. would consistently flee and make himself unavailable after being released
from custody. S.S.B. argues that substantial evidence supports the trial court’s finding
that the Department made active efforts. We agree with the Department and S.S.B.
“Active efforts” is defined as “affirmative, active, thorough, and timely efforts
intended primarily to maintain or reunite an Indian child with his or her family.”
25 C.F.R. § 23.2. Active efforts must be “tailored to the facts and circumstances of the
case” and be provided to the parent in a timely and diligent manner. 25 C.F.R. § 23.2;
RCW 13.38.040(1)(a). This requires the Department do more than merely make referrals
for services. The Department must work with the parent to “overcome barriers” to the
provision of services. 25 C.F.R. § 23.2(2); see In re Dependency of R.D., 27 Wn. App.
2d 219, 233-34, 532 P.3d 201 (2023). If the Department is unable to provide “optimum
services” or the services do not exist or are unavailable, the Department must consider
“alternative ways to address the needs of the Indian child’s parents and, where
appropriate, the family.” 25 C.F.R. § 23.2(10). The Department must “meaningfully
engage” with a parent to address their needs. In re Dependency of G.J.A., 197 Wn.2d
868, 895, 489 P.3d 631 (2021).
13 No. 40426-9-III In re Dependency of S.S.B.
Whether the State met the active efforts requirement is a mixed question of law
and fact. In re Dependency of A.L.K., 196 Wn.2d 686, 697, 478 P.3d 63 (2020). “We
review the underlying findings for substantial evidence, but review de novo whether
those findings satisfy the requirements of ICWA” and WICWA. In re Parental Rights to
D.J.S., 12 Wn. App. 2d 1, 37, 456 P.3d 820 (2020), abrogated by G.J.A., 197 Wn.2d at
901 n.16, 906 n.17.
J.G. contends the Department did not make active efforts because it failed to
provide him with a telephone, housing, transportation, and a parent navigator. We
disagree. Substantial evidence supports the trial court’s finding that the barrier to J.G.’s
reunification with S.S.B. was his intentional disassociation from the Department as he
generally had a telephone or access to a telephone, his own means of transportation or
Department provided bus passes, and various forms of housing. Further, a parent
navigator would not have been more successful than a social worker in locating J.G. or
assisting him with access to services.
The barriers to J.G.’s reunification with S.S.B. consisted of unaddressed substance
abuse and mental health issues. To overcome these barriers, the court ordered J.G. to
undergo a chemical dependency assessment, urinalysis testing, a mental health
assessment and follow up treatment, a neuropsychological evaluation and recommended
treatment, an evidence-based parenting program, and a domestic violence assessment and
14 No. 40426-9-III In re Dependency of S.S.B.
Throughout the term of the dependency, J.G. purposefully impeded the
Department’s attempts at providing these remedial services and rehabilitative programs
by making himself unavailable. Contrary to J.G.’s assertion, his inaccessibility was not
based on a lack of a telephone, transportation, or housing. J.G. conceded that he either
had a telephone or was able to borrow a telephone if needed. As for transportation, J.G.
periodically had a vehicle, could walk to service providers, or had the benefit of
Department issued bus passes. Concerning his homelessness claim, although J.G. had
periods of being unhoused, he otherwise resided with his wife, with his mother, or had his
own apartment.
To combat J.G.’s elusiveness, social workers continually sought to locate J.G.
through, among other means: phone calls; text messages; service letters; the “parent
locator;” social media platforms; government databases; jail rosters; searching local
shelters; monitoring court websites; contacting his wife, parents, aunt, community
corrections officer, and C.B.’s social worker; and attending one of his criminal court
dates. While these efforts generally proved fruitless, there was little the Department
could do to entice J.G. to meaningfully engage in services.
Substantial evidence supports the trial court’s findings that the Department made
active efforts to provide J.G. with remedial services and rehabilitative programs. When
J.G. disengaged and evaded the Department, the Department undertook comprehensive
measures in an attempt to locate J.G. so he could meaningfully engage in addressing his
15 No. 40426-9-III In re Dependency of S.S.B.
deficiencies. The Department’s actions were largely unsuccessful due to J.G.’s
disengagement and purposeful unavailability to the Department. Further, providing J.G.
a telephone, transportation, or housing would have proved redundant given the resources
he either possessed or was being provided by the Department.
J.G. argues the Department should have assigned him a parent navigator due to his
struggles with addiction, mental illness and helplessness, homelessness, and a lack of
phone and transportation. Appellant’s Open. Br. at 43. He asserts the concept of a parent
navigator is used in many other states. E.g., Ronald H. v. Dep’t of Health & Soc. Servs.,
490 P.3d 357 (Alaska 2021). While a parent navigator might be effective in certain
circumstances, we are unpersuaded a parent navigator would have been more successful
in locating J.G. or assisting him with accessing service than a social worker.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Cooney, J.
WE CONCUR:
Fearing, J. Murphy, M.